Pay per plea: public defenders come at a price - trend toward fees for public-defender representation - Cover Story

Progressive, The, Jan, 1997 by Erin Middlewood

Five women sit around a table in a stark, cement-walled holding room at the Rock County Jail in Janesville, Wisconsin. The women, recently arrested and dressed in jailhouse orange, talk with a paralegal, who is evaluating their eligibility for public defense.

One of the women receives welfare benefits. Two have no means of support. One works part-time and pulls in only $30 a week. Another sells her plasma. All of them qualify for public defense. And all of them will have to pay for it.

Paralegal Amy Kelber explains to them that Wisconsin started a new program in August 1995 requiring poor people to pay for their public representation. Defense costs $200 for a misdemeanor, Kelber tells the women, and $400 for a felony-unless the defendant pays $50 within thirty days. Kelber emphasizes that even if they never pay, the women will still get a lawyer, but their accounts will be turned over to a collection agency

At the end of the interview, Kelber gives each woman an envelope for her nonrefundable payment.

"Will I pay in the next thirty days? No," says Laureanette Ingram, twenty-nine, who has been living with her brother and has no job. "I can't. I got to find something to eat with. I got to put shoes on my feet."

Wisconsin is one of a growing number of states, including Kansas and Virginia, that now charge indigent defendants for public representation. Many states charge those seeking a public defender an evaluation fee ranging from $10 to $100. Last fall, California passed a law allowing its counties to charge $25. On January 1, 1997, Florida will implement a $40 fee.

Colorado, Connecticut, Massachusetts, New Jersey, New Mexico, and South Carolina have all implemented fees in the last several years.

None of these states deny representation to those who can't pay. Even so, public-defender fees represent a small but significant erosion of the Sixth-Amendment right to legal counsel. The fees could drive away potential public-defender clients. And, as public-defender offices begin to rely on their indigent clients for funding they are likely to encounter major cashflow problems.

Justice Hugo Black wrote in the unanimous 1963 Gideon Supreme Court decision that "any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him."

More than thirty years later, some state legislatures are asking public-defender offices to fudge on that assurance.

Waring Fincke argued in a March 1996 Wisconsin Lawyer article that imposing payment of fees on those who aren't convicted may be unconstitutional.

"The public-defender office was assailed by rightwingers in the Legislature who fail to see a need for state public defenders in the first place," he says. Fincke is a board member of the Wisconsin Association of Criminal Defense Lawyers and former staff lawyer for the public defender. "They see money going to the public-defender office and wonder, 'Why spend so much money on criminals?' they make the leap that if you are accused, you have to be guilty. In a budget crunch, that makes the public-defender budget ripe for the picking."

Facing shrinking budgets, some public-defender offices have embraced the idea of raising a few dollars from their clients.

"Lack of revenue prompted our support of the fee," says J. Marion Moorman, one of twenty elected public defenders in Florida. "Funding wasn't keeping pace with growth in caseload."

But charging the indigent hasn't been fruitful. The Wisconsin Public Defender's September 1996 Budget Forecasting Report showed that the agency had sent $12.7 million in accounts to collections, and recouped only $38,800.

The negligible financial return is only the mildest of the program's problems. In fact, the new program amounts to a hidden budget cut for the Wisconsin Public Defender. The office predicts it will bring in only about $2.5 million of the $7.5 million the state says it ought to collect from defendants over the next two years.

Wisconsin is the only state that charges poor defendants for representation no matter what the outcome of their cases. Convicted and acquitted alike must pay. If indigent defendants don't shell out $50 up front, they must pay a steeper price later. And if they don't pay later, State Collection Service, Inc., a firm contracted by the state of Wisconsin, will go after them.

It's hard to tell how many people are warded off by the fee. The state public defender doesn't keep a count of who declines representation because of the payment requirement. The best count the office offers is in its monthly Budget Forecasting Report, which includes reports from around Wisconsin of defendants who have turned down a public defender because of cost.

Paralegal Amy Kelber sees about forty defendants a week, and of those, she estimates two decline public representation and plead no contest.

"Most turndowns are in person, but some people with prior experience shy away from applying [for public defense]," says Michael Tobin, director of the Wisconsin Public Defender trial division. "We don't turn anyone away because they can't pay. If they are turning us down, it's because they found out they would have to pay in the future."